# C_2019288EN.01002601.xml

| 26.8.2019 | EN | Official Journal of the European Union | C 288/26 |
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26.8.2019

EN

Official Journal of the European Union

C 288/26

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Request for a preliminary ruling from the Raad van State (Belgium) lodged on 24 May 2019 — Katoen Natie Bulk Terminals NV, General Services Antwerp NV v Belgische Staat

(Case C-407/19)

(2019/C 288/33)

Language of the case: Dutch

Referring court

Raad van State

Parties to the main proceedings

Applicants: Katoen Natie Bulk Terminals NV, General Services Antwerp NV

Defendant: Belgische Staat

Questions referred

| 1. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule laid down in Article 1 of the Koninklijk Besluit van 5 juli 2004 (Royal Decree of 5 July 2004) ‘betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid’ (‘on the recognition of dockers in the port areas falling within the scope of the Law of 8 June 1972 organising dock work’), read in conjunction with Article 2 of the aforementioned decree of 5 July 2004, namely, the rule that the dockers referred to in Article 1(1), first subparagraph, of the aforementioned Royal Decree of 5 July 2004, upon their recognition by the administratieve commissie (Administrative Commission), composed jointly, on the one hand, of members designated by the employer organisations represented in the relevant joint subcommittee and, on the other hand, of members designated by the employee organisations represented on the joint subcommittee, are either included in the pool of dockers or are not included in that pool, whereby recognition for the purpose of inclusion takes into account the need for manpower and also takes into account that a decision-making deadline has not been prescribed for that Administrative Commission and that against its recognition decisions provision has been made only for a jurisdictional appeal? |
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1.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule laid down in Article 1 of the Koninklijk Besluit van 5 juli 2004 (Royal Decree of 5 July 2004) ‘betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid’ (‘on the recognition of dockers in the port areas falling within the scope of the Law of 8 June 1972 organising dock work’), read in conjunction with Article 2 of the aforementioned decree of 5 July 2004, namely, the rule that the dockers referred to in Article 1(1), first subparagraph, of the aforementioned Royal Decree of 5 July 2004, upon their recognition by the administratieve commissie (Administrative Commission), composed jointly, on the one hand, of members designated by the employer organisations represented in the relevant joint subcommittee and, on the other hand, of members designated by the employee organisations represented on the joint subcommittee, are either included in the pool of dockers or are not included in that pool, whereby recognition for the purpose of inclusion takes into account the need for manpower and also takes into account that a decision-making deadline has not been prescribed for that Administrative Commission and that against its recognition decisions provision has been made only for a jurisdictional appeal?

| 2. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule introduced by Article 4(1), subparagraphs 2, 3, 6 and 8 of the Royal Decree of 5 July 2004 as replaced or inserted respectively by Article 4, subparagraphs 2, 3, 4 and 6 of the contested Koninklijk Besluit van 10 juli 2016 (Royal Decree of July 10, 2016), namely, the rule that lays down as a condition for recognition as a docker that the worker (a) has been declared medically fit by the external service for prevention and protection at the work with which the employer organisation designated as an agent under Article 3a of the Wet van 8 juni 1972‘betreffende de havenarbeid’ (Law of 8 June 1972‘organising dock work’) is associated, and (b) has passed the psychotechnical tests conducted by the body designated for that purpose by the recognised employer organisation designated as an agent under the same Article 3a of the Wet van 8 juni 1972, (c) has attended for three weeks the preparatory courses on safety at work and the attainment of professional competence and has passed the final test and (d) already be in possession of an employment contract in the case of a docker who is not included in the pool, which, read in conjunction with Article 4(3) of the Royal Decree of 5 July 2004, means that foreign dockers must be able to prove that they satisfies comparable conditions in another Member State so that, for the purpose of the application of the contested rule, they are no longer subject to those conditions? |
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2.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule introduced by Article 4(1), subparagraphs 2, 3, 6 and 8 of the Royal Decree of 5 July 2004 as replaced or inserted respectively by Article 4, subparagraphs 2, 3, 4 and 6 of the contested Koninklijk Besluit van 10 juli 2016 (Royal Decree of July 10, 2016), namely, the rule that lays down as a condition for recognition as a docker that the worker (a) has been declared medically fit by the external service for prevention and protection at the work with which the employer organisation designated as an agent under Article 3a of the Wet van 8 juni 1972‘betreffende de havenarbeid’ (Law of 8 June 1972‘organising dock work’) is associated, and (b) has passed the psychotechnical tests conducted by the body designated for that purpose by the recognised employer organisation designated as an agent under the same Article 3a of the Wet van 8 juni 1972, (c) has attended for three weeks the preparatory courses on safety at work and the attainment of professional competence and has passed the final test and (d) already be in possession of an employment contract in the case of a docker who is not included in the pool, which, read in conjunction with Article 4(3) of the Royal Decree of 5 July 2004, means that foreign dockers must be able to prove that they satisfies comparable conditions in another Member State so that, for the purpose of the application of the contested rule, they are no longer subject to those conditions?

| 3. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule introduced by Article 2(3) of the Royal Decree of 5 July 2004, as replaced by Article 2 of the contested Royal Decree of 10 July 2016, namely, the rule whereby the dockers who are not included in the pool and who are therefore directly recruited by an employer on an employment contract in accordance with the Wet van 3 juli 1978‘betreffende de arbeidsovereenkomsten’ (Law of 3 July 1978‘on employment contracts’) have the duration of their recognition limited to the duration of that employment contract so that each time a new recognition procedure must be started? |
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3.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule introduced by Article 2(3) of the Royal Decree of 5 July 2004, as replaced by Article 2 of the contested Royal Decree of 10 July 2016, namely, the rule whereby the dockers who are not included in the pool and who are therefore directly recruited by an employer on an employment contract in accordance with the Wet van 3 juli 1978‘betreffende de arbeidsovereenkomsten’ (Law of 3 July 1978‘on employment contracts’) have the duration of their recognition limited to the duration of that employment contract so that each time a new recognition procedure must be started?

| 4. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 13/1 of the Royal Decree of 5 July 2004, as inserted by Article 17 of the Royal Decree of 10 July 2016, namely, the transitional measure whereby the employment contract referred to in Question 3 must initially be concluded for an indefinite period: from 1 July 2017 for at least two years from 1 July 2018 for at least one year, from 1 July 2019 for at least six months, from 1 July 2020 for a period to be freely determined? |
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4.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 13/1 of the Royal Decree of 5 July 2004, as inserted by Article 17 of the Royal Decree of 10 July 2016, namely, the transitional measure whereby the employment contract referred to in Question 3 must initially be concluded for an indefinite period: from 1 July 2017 for at least two years from 1 July 2018 for at least one year, from 1 July 2019 for at least six months, from 1 July 2020 for a period to be freely determined?

| 5. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule laid down in Article 15/1 of the Royal Decree of 5 July 2004, as inserted by Article 18 of the Royal Decree of 10 July 2016, namely, the (transitional) measure whereby the dockers recognised under the old rule are automatically recognised as dockers in the pool, as a result of which the possibility of direct employment (on a permanent contract) of those dockers by an employer is hindered and the employers are prevented from engaging and retaining good workers by concluding a permanent contract with them directly and offering them job security in accordance with the general rules of labour law? |
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5.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule laid down in Article 15/1 of the Royal Decree of 5 July 2004, as inserted by Article 18 of the Royal Decree of 10 July 2016, namely, the (transitional) measure whereby the dockers recognised under the old rule are automatically recognised as dockers in the pool, as a result of which the possibility of direct employment (on a permanent contract) of those dockers by an employer is hindered and the employers are prevented from engaging and retaining good workers by concluding a permanent contract with them directly and offering them job security in accordance with the general rules of labour law?

| 6. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 4(2) of the Royal Decree of 5 July 2004, as replaced by Article 4(7) of the Royal Decree of 10 July 2016, namely, the rule whereby a collective labour agreement determines the conditions and detailed rules under which a docker can be employed in a port area other than the one where he was recognised, thereby limiting the mobility of workers between port areas without the regulator itself providing clarity as to what those terms and conditions might be? |
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6.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 4(2) of the Royal Decree of 5 July 2004, as replaced by Article 4(7) of the Royal Decree of 10 July 2016, namely, the rule whereby a collective labour agreement determines the conditions and detailed rules under which a docker can be employed in a port area other than the one where he was recognised, thereby limiting the mobility of workers between port areas without the regulator itself providing clarity as to what those terms and conditions might be?

| 7. | Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 1(3) of the Royal Decree of 5 July 2004, as replaced by Article 1, subparagraph 2, of the Royal Decree of 10 July 2016, namely, the rule whereby (logistics) workers who perform work within the meaning of Article 1 of the Koninklijk Besluit van 12 januari 1973‘tot oprichting en vaststelling van de benaming en van de bevoegdheid van het Paritair Comité voor het Havenbedrijf’ (Royal Decree of 12 January 1973‘establishing and determining the appointment and powers of the Joint Ports Committee’) at locations where goods which, in preparation for their further distribution or dispatch, undergo a transformation that leads indirectly to demonstrable added value, must have a security certificate, whereby that security certificate constitutes recognition within the meaning of the Law of 8 June 1972‘organising dock work’, taking into account that that certificate is requested by the employer who has signed an employment contract with a worker for activities in that sense to be performed and issued upon presentation of the employment contract and identity card and whereby the detailed rules of the procedure to be followed are laid down by collective agreement, without the regulator providing clarity on that point? |
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7.

Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 1(3) of the Royal Decree of 5 July 2004, as replaced by Article 1, subparagraph 2, of the Royal Decree of 10 July 2016, namely, the rule whereby (logistics) workers who perform work within the meaning of Article 1 of the Koninklijk Besluit van 12 januari 1973‘tot oprichting en vaststelling van de benaming en van de bevoegdheid van het Paritair Comité voor het Havenbedrijf’ (Royal Decree of 12 January 1973‘establishing and determining the appointment and powers of the Joint Ports Committee’) at locations where goods which, in preparation for their further distribution or dispatch, undergo a transformation that leads indirectly to demonstrable added value, must have a security certificate, whereby that security certificate constitutes recognition within the meaning of the Law of 8 June 1972‘organising dock work’, taking into account that that certificate is requested by the employer who has signed an employment contract with a worker for activities in that sense to be performed and issued upon presentation of the employment contract and identity card and whereby the detailed rules of the procedure to be followed are laid down by collective agreement, without the regulator providing clarity on that point?

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